Kennerly v. District Court of the Ninth Judicial District of Montana/Dissent Stewart

Mr. Justice STEWART, with whom Mr. Justice WHITE joins, dissenting.

This case does not involve state action infringing 'the right of reservation Indians to make their own laws and be ruled by them.' Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 271, 3 L.Ed.2d 251. To the contrary, the exercise of state jurisdiction complained of here was expressly authorized by tribal law. Blackfeet Tribal Law and Order Code, c. 2, § 1. The Court holds that this tribal law is invalid because Congress has restricted the right of Indian selfgovernment by specifying the exclusive procedure by which reservation Indians may confer on a state court jurisdiction over them.

I think that Congress did not intend in enacting either § 7 of the Act of August 15, 1953, 67 Stat. 590, or the successor to that section, Title IV of the Civil Rights Act of 1968, §§ 402(a), 406, 25 U.S.C. §§ 1322, 1326 (1964 ed., Supp. V), to invalidate tribal legislation that authorizes state courts to take jurisdiction over actions brought against a member of the tribe. It is plain to me that these statutes reflect only a congressional determination that there is a need for protective limitations when state jurisdiction over reservation Indians is to be permanently authorized. But I can find in these statutes no suggestion that Congress determined that such limitations are necessary when reservation Indians pass a law that authorizes state court jurisdiction over them. Nor can I see any reason to suppose that to invalidate such a law will effectuate the purpose of Congress. When state court jurisdiction over reservation Indians rests on tribal legislation, as distinct from a permanent federal authorization, the interests of the reservation Indians are fully protected by their ability to repeal the grant of jurisdiction to the state courts and thereby to return exclusive jurisdiction to their own courts.

The decision reached by the Court today substantially frustrates productive self-government by reservation Indians because it unjustifiably reduces the options available to them with respect to state court jurisdiction. The reservation Indians must now choose between exclusive tribal court jurisdiction on the one hand and permanent, irrevocable state jurisdiction on the other. This means that because of a temporary inability to maintain a tribal court, reservation Indians may find it necessary to cede jurisdiction to a State for all time. It also means that reservation Indians do not have the option of a trial period of state jurisdiction under the authority of their own laws. I cannot believe that Congress intended to withdraw these options.

Finally, it seems to me quite wrong to invalidate an enactment of the Blackfeet Tribal Council, which is not a party to this litigation, without first giving the Council an opportunity at least to submit a brief in support of its legislation. Before deciding this case the Court requested the Solicitor General to submit the views of the United States, whose law the Court now interprets as controlling. I should have thought the most basic principles of fair play would dictate a like request to the Blackfeet Tribal Council before the Court strikes down its law as invalid.